In Re Marriage of Gingras

407 N.E.2d 788, 86 Ill. App. 3d 14, 41 Ill. Dec. 290, 1980 Ill. App. LEXIS 3199
CourtAppellate Court of Illinois
DecidedJune 19, 1980
Docket79-1620
StatusPublished
Cited by7 cases

This text of 407 N.E.2d 788 (In Re Marriage of Gingras) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Gingras, 407 N.E.2d 788, 86 Ill. App. 3d 14, 41 Ill. Dec. 290, 1980 Ill. App. LEXIS 3199 (Ill. Ct. App. 1980).

Opinion

Mr. JUSTICE ROMITI

delivered the opinion of the court;

Bernadette J. Gingras appeals from an order of the trial court denying her motion for an order nunc pro tunc correcting a clerical error in a judgment for dissolution of marriage. Jerome J. Gingras has filed a cross-appeal from that portion of the order which granted Bernadette’s additional request that Jerome pay to Bernadette security deposits due the tenants of a building awarded to Bernadette in the judgment for dissolution of marriage, said payments to be made when and if claims to them were made.

We find that the trial court erred in refusing to correct the divorce decree and we reverse and remand with instructions as to that correction. We affirm that portion of the order relating to payment of security deposits.

The judgment for dissolution of marriage provided, inter alia-.

“7. That the parties have entered into an oral Property Settlement Agreement whose terms are memorialized herein and the Court finds that the terms of such Agreement are fair and just and the parties desire that said agreement be made a part of this Judgment for Dissolution of the Marriage. As a settlement as and for an equitable division of the marital property and as and for settlement in lieu of maintenance whereas the parties waive all rights and claims to the other to permanent maintenance, the Property Agreement of the parties is as follows:
A. The parties agree to an equal division of the following property, achieved by a private bidding between the parties on June 13, 1978, pursuant to their agreement under oath and in open Court. Said division is as follows:
BERNADETTE J. GINGRAS [Petitioner] is awarded as her sole property:
(A) 68 West Cunningham Drive Palatine, Illinois
Amount Bid: $110,000 Equity: $ 69,000
(C) 3910 West 124th Street Alsip, Illinois
Amount Bid: $120,000 Equity: $ 72,500
Total Equity: $141,500
JEROME J. GINGRAS [Respondent] is awarded as his sole property:
(B) Argosy Stock Equity and
Amount Bid: $ 5,000
(D) 1/2 interest in Brigadoon Partnership
Equity and
Amount Bid: $ 49,500
(E) 3916 West 124th Street Alsip, Illinois
Amount Bid: $120,000 Equity: $ 71,500
Total Equity: $126,000
(Difference of $15,500 to equal $141,500 awarded to Petitioner is treated as a debt to Respondent in Paragraph D below).
# # 6
D. The Petitioner agrees to execute and deliver to the Respondent a second mortgage and assignment of rents on the aforedescribed property at 3910 West 124th Street, Alsip, Illinois, or in Palatine, to secure the said debt of $15,500.00, as evidenced by a promissory note, and payable in monthly installments of $201.97, commencing August 1, 1978, and due on the first day of each and every month
thereafter for eight (8) years, plus interest at the rate of 6 3/4 percent per annum.
#
I. The Respondent agrees to execute, assign, and deliver all the necessary documents and monies presently held in connection with the operation of the rental income property of 3910 West 124th Street, Alsip, Illinois, after payment by the Respondent of all reasonable debts and expenses due on or before July 1, 1978, which are attributable to said building.

That judgment was entered on July 5, 1978. On October 24, 1978, Bernadette filed her motion to correct the judgment, alleging in substance that it was clear from the face of the judgment order that a mathematical error was made in determining the amount needed to equalize the $15,500 difference in equity between the two parties. Bernadette apparently also filed a petition in which she sought to recover from Jerome the security deposits held by him in connection with the property at 3910 West 124th Street in Alsip. However that petition has not been made part of the record on appeal. On July 12, 1979, the trial court entered an order denying Bernadette’s motion to correct the judgment but granting her relief as to the security deposits as we have already outlined.

I.

A trial court retains jurisdiction to enter a nunc pro tunc order correcting a final order or judgment even after the expiration of the term in which a judgment was entered. (Spears v. Spears (1977), 52 Ill. App. 3d 695, 367 N.E.2d 1004.) The correction must be based on some note, memorandum, or memorial paper remaining in the file or upon the records of the court; it cannot be based on the recollection of the trial judge or other persons. (Fox v. Department of Revenue (1966), 34 Ill. 2d 358, 215 N.E.2d 271; Kooyenga v. Hertz Equipment Rentals, Inc. (1979), 79 Ill. App. 3d 1051, 399 N.E.2d 216.) Moreover this power is limited to entering into the record something which was actually done; it may not be used to supply omitted judicial action, to correct judicial error, or to cure a jurisdictional defect. Kooyenga v. Hertz Equipment Rentals, Inc.; Lebanon Trust & Savings Bank v. Ray (1973), 10 Ill. App. 3d 345, 293 N.E.2d 623.

An example of the application of these principles may be seen in Dauderman v. Dauderman (1970), 130 Ill. App. 2d 807, 263 N.E.2d 708. There the plaintiff’s attorney, pursuant to the court’s instructions, prepared the divorce decree which ordered defendant to pay to the plaintiff ° ° $400 as alimony, to enable her to live as nearly as possible in the manner and style to which defendant’s earnings and station in life entitled her.” More than 30 days after that judgment order was entered, plaintiff successfully moved to correct the order to read $400 per month. That order was upheld on appeal, the appellate court finding in part that the very language of the decree demonstrated that the figure was intended to be per month.

In this cause it is also clear from the very language of the decree that the trial court intended to provide for an equal division of the property listed in paragraph 7(A) of the divorce decree.

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Cite This Page — Counsel Stack

Bluebook (online)
407 N.E.2d 788, 86 Ill. App. 3d 14, 41 Ill. Dec. 290, 1980 Ill. App. LEXIS 3199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-gingras-illappct-1980.